Reynolds v. Spencer

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

GLEN AARON REYNOLDS, Petitioner/Appellant,

v.

KORINA DARLENE SPENCER, Respondent/Appellee.

No. 1 CA-CV 23-0399 FC
FILED 4-4-2024

Appeal from the Superior Court in Mohave County
No. S8015DO202300237
The Honorable Megan A. McCoy, Judge

VACATED AND REMANDED

COUNSEL

Glen Aaron Reynolds, Lake Havasu City
Petitioner/Appellant

Korina Darlene Spencer, Snowflake
Respondent/Appellee
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MEMORANDUM DECISION

Presiding Judge Paul J. McMurdie delivered the Court’s decision, in which
Judge Maria Elena Cruz and Judge Cynthia J. Bailey joined.

M c M U R D I E, Judge:

¶1 Glen Aaron Reynolds (“Father”) appeals the superior court’s
June 2023 legal decision-making and parenting time orders. We vacate and
remand for new findings on whether Father committed significant
domestic violence under A.R.S. § 25-403.03.

FACTS AND PROCEDURAL BACKGROUND

¶2 Korina Darlene Spencer (“Mother”) and Father are the
parents of five minor children. In 2021, the parties divorced in Wyoming.
The decree granted the parties joint legal decision-making and designated
Father the primary residential parent, with Mother to have reasonable
visitation with the children.

¶3 In March 2023, the parties registered their Wyoming child
custody order in Arizona. And Arizona accepted jurisdiction from
Wyoming for all child custody determinations between the parties. Father
then petitioned to modify the legal decision-making authority and
parenting time. Father alleged that Mother held the children past her
allotted summer visitation time and was continuing to withhold them. He
requested sole legal decision-making authority, with Mother to have no
contact with the children.

¶4 The superior court held a trial on Father’s petition, and
Mother and Father testified. The court admitted allegations of Father’s
domestic violence against the children, including allegations made to the
Wyoming Department of Family Services. The evidence did not include the
Wyoming department’s findings.

¶5 In June 2023, the court entered its order. It completed a
best-interests analysis and noted that the Wyoming Department of Family
Services had substantiated certain domestic violence allegations against
Father. The court found, under A.R.S. § 25-403.03(A), that Father
“committed acts of domestic violence against the children, and such were

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significant domestic violence and a significant history of domestic violence
occurring over a lengthy period of time.” It found that “there is an
irrebuttable preclusion from awarding joint legal decision making.” The
court awarded Mother sole legal decision-making authority and designated
her the primary residential parent, with Father to have supervised
parenting time every other weekend.

¶6 Father appealed the order, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

DISCUSSION

¶7 We review an award of legal decision-making and parenting
time for an abuse of discretion. Olesen v. Daniel, 251 Ariz. 25, 29, ¶ 14 (App.
2021); DeLuna v. Petitto, 247 Ariz. 420, 423, ¶ 9 (App. 2019). A court abuses
its discretion if it commits an error of law when reaching a discretionary
decision or when the record does not support its decision. DeLuna, 247 Ariz.
at 423, ¶ 9. We accept the court’s factual findings unless they are clearly
erroneous, but we review legal conclusions and the interpretation of
statutes de novo. Id.

A. The Superior Court Violated Father’s Due Process Rights by
Relying on Domestic Violence Evidence Not Presented at Trial.

¶8 Father argues the superior court violated his due process
rights when it made a finding under A.R.S. § 25-403.03(A) by relying on
evidence not presented at trial. Specifically, he contends that the court may
have relied on Wyoming’s Department of Family Services Notice of
Conclusions—the department’s findings following an investigation of
abuse allegations against Father. Father notes that the Notice of
Conclusions was not filed until after the trial and that he was not given a
chance to be heard by the court on the evidence. The Notice of Conclusions
reads that Father has the right to request an administrative hearing on the
findings. Father alleges in his opening brief that he requested an
administrative hearing with the Wyoming Department of Family Services.

¶9 The Due Process Clause of the Fourteenth Amendment
“protects parents’ fundamental liberty interest in ‘the care, custody, and
management’ of their children.” Ruben M. v. Ariz. Dep’t of Econ. Sec., 230
Ariz. 236, 238, ¶ 12 (App. 2012) (quoting Santosky v. Kramer, 455 U.S. 745,
753 (1982)). Due process entitles a party to notice, a meaningful opportunity
to be heard and offer evidence, and a chance to confront adverse evidence.
Cruz v. Garcia, 240 Ariz. 233, 236, ¶ 11 (App. 2016). “A family law judgment

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rendered without notice and a meaningful opportunity to be heard cannot
stand.” Id. at 236, ¶ 12.

¶10 Here, the court explained its significant domestic violence
finding under A.R.S. § 25-403.03(A) by stating:

Mother and the children allege domestic violence and child
abuse committed by Father toward the children. The
allegation is that Father yells and has physically abused the
children. These were substantiate[d] in the State of Wyoming
by the Department of Family Services — including 1) physical
abuse of [child] by pushing her to the ground and causing her
to hit her head on the coffee table, 2) physical abuse of [child]
by dragging the child down the stairs of the home, 3) physical
abuse of [child] by grabbing the child by the throat as if
strangling him, and 4) emotional abuse of all five children by
acting out with violent outbursts toward the children, yelling,
and making derogatory statements. These outbursts have
continued in his visits during this case.

At the trial, the court admitted the Wyoming allegations only to corroborate
that the Wyoming Department of Family Services was investigating the
allegations. The allegations were also documented in an Arizona
Department of Child Safety report to the juvenile court, which the court
admitted at the trial. In the evidence presented at trial, the domestic
violence allegations had not yet been substantiated. That the Wyoming
Department of Family Services substantiated most of the allegations is a fact
only present in the Notice of Conclusions filed after trial. Aside from the
Notice of Conclusions, the record lacks evidence that the allegations were
substantiated. And there is no record evidence of Father being allowed to
be heard on the Notice of Conclusions.

¶11 Because the court’s finding under A.R.S. § 25-403.03(A) relied
on Wyoming’s Department of Family Services’ substantiated allegations,
the court must have relied on the Notice of Conclusions. Such reliance was
improper because Father was not provided a meaningful opportunity to be
heard on that evidence. See Cruz, 240 Ariz. at 236, ¶ 12. The document
submitted to the court after trial “cannot substitute for admissible exhibits
and testimony subjected to adversary testing.” See id. at 238, ¶ 17.

¶12 On this record, we cannot determine whether the court would
have made a significant domestic violence finding under A.R.S.
§ 25-403.03(A) had it not considered that Wyoming’s Department of Family

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Services substantiated the allegations against Father. See A.R.S. § 25-403.03.
Because there is a debatable issue and Mother failed to file an answering
brief, we consider it a confession of reversible error. See Savord v. Morton, 235 Ariz. 256, 259, ¶ 9 (App. 2014).

¶13 The court denied Father due process by relying on the Notice
of Conclusions without providing Father an opportunity to be heard. We
remand for the court to make new findings under A.R.S. § 25-403.03. To
satisfy A.R.S. § 25-403.03(A), the court must either make specific findings
under A.R.S. § 13-3601 or find a significant history of domestic violence by
a preponderance of the evidence. A.R.S. § 25-403.03(A). The court should
allow either party the opportunity on remand to present additional
evidence. See Francine C. v. Dep’t of Child Safety, 249 Ariz. 289, 300, ¶ 35
(App. 2020).

B. The Superior Court Did Not Abuse Its Discretion by Not Applying
the Rebuttable Presumption Under A.R.S. § 25-403.03(D).

¶14 Father argues that the superior court abused its discretion by
failing to make findings under A.R.S. § 25-403.03(D). He contends that after
the court made its findings under A.R.S. § 25-403.03(A), it should have
applied the rebuttable presumption under A.R.S. § 25-403.03(D) because he
requested sole legal decision-making. We disagree.

¶15 A.R.S. § 25-403.03(D) provides the following in part:

If the court determines that a parent who is seeking sole or
joint legal decision-making has committed an act of domestic
violence against the other parent, there is a rebuttable
presumption that an award of sole or joint legal
decision-making to the parent who committed the act of
domestic violence is contrary to the child’s best interests.

(Emphasis added.) The rebuttable presumption only applies when the
parent seeking sole or joint legal decision-making committed an act of
domestic violence against the other parent. A.R.S. § 25-403.03(D); see also
Olesen, 251 Ariz. at 29, ¶ 15. Here, Father sought sole legal decision-making.
Mother never alleged, and the court never found, that Father committed
domestic violence against her. Thus, the court did not err by failing to
analyze the presumption under A.R.S. § 25-403.03(D).

¶16 Father misunderstands the court’s order when he argues that
the court erred by finding an “irrebuttable preclusion” against awarding
him sole legal decision-making. Rather, the court found that it was

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precluded from awarding him joint legal decision-making under A.R.S.
§ 25-403.03(A), and then found it was in the children’s best interests to
award Mother sole legal decision-making after considering each factor
under A.R.S. § 25-403. See A.R.S. § 25-403.03(F) (“If the court finds that a
parent has committed an act of domestic violence, that parent has the
burden of proving to the court’s satisfaction that parenting time will not
endanger the child or significantly impair the child’s emotional
development.”); A.R.S. § 25-403.03(B) (“The court shall consider evidence
of domestic violence as being contrary to the best interests of the child.”).
Although the court’s finding under A.R.S. § 25-403.03(A) was insufficient,
the court did not err in the order of its analysis.

CONCLUSION

¶17 We remand for the superior court to make new findings
under A.R.S. § 25-403.03(A). Father is entitled to his costs upon compliance
with ARCAP 21 as the prevailing party.

AMY M. WOOD • Clerk of the Court
FILED: AA

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